MORRIS v. THE STATE
A16A1960
Court of Appeals of Georgia
DECIDED FEBRUARY 21, 2017
340 Ga. App. 295 | 797 SE2d 207
DILLARD, Presiding Judge.
Daniel J. Porter, District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.
DILLARD, Presiding Judge.
Following a trial by jury, Taurean Morris was convicted of criminal attempt to commit armed robbery, aggravated assault, aggravated battery, violation of the Georgia Street Gang Terrorism and Prevention Act1 (three counts), and possession of a firearm during the commission of a felony. Morris appeals from these convictions, arguing that (1) the evidence was insufficient to sustain his convictions for violation of the Street Gang Terrorism and Prevention Act; (2) his trial counsel rendered ineffective assistance in a number of instances; (3) the trial court erred in denying a motion to sever his trial from that of a co-defendant; (4) the trial court erroneously admitted evidence under
Viewed in the light most favorable to the jury‘s verdict,2 the record reflects that on January 8, 2014, the victims, Raymond Ball and Jazmine Webb, were at home in their apartment when there was a sudden knock at the door. Webb peered through the peephole and recognized a person with “little twist dreads,” whom she had seen purchase marijuana from Ball on numerous occasions. Webb also recalled previously seeing this person associated with a gray, four-door vehicle.
When Ball looked through the peephole and saw two men, he was hesitant to open the door because he was not expecting visitors. But he eventually did so after recognizing one of the two men as “Tee,”
Morris and Ruffin feigned interest in purchasing marijuana from Ball, which he went to retrieve from a back bedroom.3 But upon returning to the hallway, Ball was confronted by the men and, though he subsequently blacked out and could not remember exactly what occurred, both he and Webb testified that Morris fired shots from a handgun, two of which struck Ball, inflicting serious injuries.4 Ball then recalled seeing both Morris and Ruffin appear to look for items to steal before fleeing the apartment after Webb‘s brother emerged from his room. In a 911 call that followed, Webb identified Ruffin by name. And immediately after the incident, a neighbor who heard multiple gunshots saw two males matching Morris and Ruffin‘s description run into the parking lot and, shortly after that, saw a gray, four-door vehicle depart from the scene.
The same night as the incident, Webb visited Ruffin‘s Facebook page and, while perusing the account, identified both Ruffin and Morris in pictures as having been the perpetrators. She then showed these pictures to an investigating officer. Webb then found more pictures on Facebook later that same night, including a photograph of the vehicle that she had previously associated with Morris, and she provided the officer with those pictures as well. Using the photograph of the gray, four-door vehicle, officers were able to associate the vehicle‘s tag number with Morris‘s name and address.
Thereafter, law enforcement presented Ball with two photographic lineups, and he identified Ruffin and Morris in both of them. And when Morris was later apprehended, he was found with his hair in “little twist dreads” like those Webb had described. Morris and Ruffin were jointly indicted, tried together for the offenses enumerated supra after the trial court denied their motions to sever, and ultimately convicted of the enumerated offenses. Morris appeals following the denial of his motion for new trial.
At the outset, we note that when a criminal conviction is appealed, the appellant no longer enjoys a presumption of innocence.5 And the
1. Morris argues that the evidence was insufficient to sustain his convictions in Counts 4, 5, and 6 for violation of the Street Gang Terrorism and Prevention Act.8 Specifically, he contends that the State failed to establish that he was associated with a criminal street gang or to establish the necessary nexus between the predicate crimes and criminal-gang activity. We disagree.
A criminal street gang is a “group of three or more persons associated in fact ... which engages in criminal gang activity.”9 The existence of such a gang may be established by evidence of “symbols, tattoos, graffiti, attire or other distinguishing characteristics” that include, but are not limited to “common activities, customs, or behaviors.”10 And in Georgia it is “unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of” specific enumerated offenses.11
Here, Morris was charged with three counts of violating the Georgia Street Gang Terrorism and Prevention Act by participating
First, although Morris does not challenge the sufficiency of the evidence as to the underlying predicate offenses of attempted armed robbery,16 aggravated assault,17 and aggravated battery,18 we note that the evidence, as recounted supra, was sufficient for the jury to conclude that he committed same and, thus, to sustain his convictions for Counts 1 through 3.19
Morris next argues that the State‘s evidence failed to show that the commission of the attempted armed robbery, aggravated assault, and aggravated battery were intended to further the interests of Sex Money Murder. In other words, Morris argues that the State failed to establish the necessary nexus between those crimes and participa-
In this case, the State presented evidence of both Morris and Ruffin‘s association with members of Sex Money Murder; evidence of both Morris and Ruffin publicly displaying symbols and using language associated with Sex Money Murder; and evidence of Sex Money Murder‘s criminal activities. And in order to connect Morris and Ruffin‘s association with Sex Money Murder to the predicate crimes, the State presented evidence that just three days after the incident in question, Ruffin—to whom Webb was connected via Facebook—posted a status update that read as follows: “Yall been waiting on a reply... keep waiting yall will 3 me when yall will 3 me... say no more... #BLATT #SMM #GunzUP.” Testimony by a law-enforcement officer established that the hashtags26 used at the end of the status update were words or references commonly used by the Sex Money Murder gang. And Webb saw Ruffin‘s Facebook post and testified that she commented on it (“He a bitch once again an he aint gone shoot shit dats y da pussy out hiding now. #dem real goons gne cme get da bitch!“) because she believed he was making reference to shooting Ball.
Once again, when reviewing the sufficiency of the evidence, this Court does not weigh the evidence or determine witness credibility, and we will uphold the jury‘s verdict so long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State‘s case.27 It is well established that criminal intent is a question for the jury, and such intent “may be inferred from that person‘s conduct before, during, and after the
2. Next, Morris argues that his trial counsel rendered ineffective assistance in a number of instances. Again, we disagree.
Before addressing Morris‘s contentions, we note that, in general, when a defendant claims that his trial counsel was ineffective, he has the burden of establishing that “(1) his attorney‘s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.”30 And when a trial court determines, as the court below did here, that a defendant did not receive ineffective assistance, we will affirm that decision unless it is clearly erroneous.31 With these guiding principles in mind, we turn now to Morris‘s specific arguments.
(a) First, Morris contends that counsel was ineffective by failing to file a special demurrer as to Counts 4, 5, and 6. We find this argument unavailing.
To begin with, a special demurrer challenges “the sufficiency of the form of the indictment,”32 and in such a demurrer, the defendant claims that the indictment is “imperfect as to form or that the accused is entitled to more information.”33 Morris argues that Counts 4, 5, and 6 were subject to a special demurrer because the indictment (1) “did
As to the first and second contentions, they are wholly without merit when, as discussed in Division 1 supra, Morris was charged with violating the Georgia Street Gang Terrorism and Prevention Act in Counts 4, 5, and 6 by, “on or about the 8th day of January, 2014, being associated with Sex Money Murder, a criminal street gang, and a subset of the Blood criminal street gang” and unlawfully “conduct[ing] and participat[ing] in criminal gang activity through the commission of” attempted armed robbery, aggravated assault, and aggravated battery.
As to the third contention, it too is without merit when, just as in Hood v. State,35 the indictment here “sufficiently alleged that the criminal street gang was in existence and ongoing at the time of the commission of the enumerated offenses.”36 And as we expressed in Hood,
it was not necessary for the indictment also to contain a specific allegation that the gang existed prior to the commission of any of the enumerated offenses, or to include a specific enumerated offense that was committed prior to the commission of any of the enumerated offenses in this case.37
Furthermore, even if counsel somehow rendered ineffective assistance by failing to file a special demurrer as to Counts 4, 5, and 6, Morris cannot establish that he suffered prejudice. Indeed, if a special demurrer is granted,
the trial court quashes the indictment. However, the quashing of an indictment merely bars trial on the flawed indictment; it does not bar the State from reindicting the defendant. Thus, even if [Morris‘s] attorney had filed a demurrer,
Thus, this claim of ineffective assistance of counsel fails.
(b) Second, Morris contends that counsel was ineffective by failing to object to the trial court‘s erroneous limiting instructions. However, Morris has abandoned this enumeration of error by failing to provide citation to authority in support of same, or to fully develop an argument as to why an objection was necessary or appropriate such that his counsel rendered ineffective assistance by failing to object.39 Furthermore, trial counsel testified at the motion-for-new-trial hearing that the decision not to object to the trial court‘s limiting instructions was a matter of strategy because counsel “felt they were in [Morris‘s] interest.” And it is well established that “[m]atters of trial strategy do not support a claim of ineffective assistance.”40
(c) Finally, Morris argues that counsel was ineffective by failing to object to hearsay testimony from the State‘s gang expert. Once again, we disagree.
Although Morris alleges that the State‘s gang expert provided inadmissible hearsay testimony, he cites to no such portion of the record. Instead, the only portion of the record to which Morris cites is wherein the gang expert testified to not having personally investigated the case at hand. But the investigator never testified regarding any information that was relayed to him by another individual.41
Instead, the record reflects that the investigator testified regarding his extensive training and experience in investigating criminal street gangs; his personal knowledge as to the history and characteristics of Sex Money Murder as a subset of the Blood criminal street gang; his personal knowledge as to the graffiti, symbols, hand signs, colors, language, and tattoos associated with criminal street gangs
In light of the foregoing, Morris has failed to establish that his counsel rendered ineffective assistance by failing to object when the State‘s expert testified from personal knowledge and did not provide inadmissible hearsay testimony.42
3. Morris contends that the trial court erred in denying a motion to sever his trial from that of Ruffin. Yet again, we disagree.
When a defendant seeks severance, he must “show clearly that he will be prejudiced by a joint trial, and in the absence of such a showing, this Court will not disturb the trial court‘s denial of a severance motion.”43 When it rules upon such a motion, the trial court is to consider “whether a joint trial will create confusion of the evidence and law, whether there is a danger that evidence implicating only one defendant will be considered against a co-defendant despite limiting instructions, and whether the defendants are asserting antagonistic defenses.”44 But this Court will not find that the denial of a motion for severance was an abuse of discretion “unless it appears that the defendant suffered prejudice that amounted to a denial of due process.”45
Here, citing to only a single 1970 case from the United States Court of Appeals for the Fifth Circuit and to no binding precedent from Georgia,46 Morris argues that the trial court erred in denying his motion to sever because (1) the trial involved evidence that was presented only as to Ruffin; (2) the jury could not have been expected
4. Morris next asserts that the trial court erroneously admitted evidence under
First,
Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .50
The Supreme Court of Georgia has adopted a three-part test by which we evaluate the admissibility of so-called “other acts” evidence:52 “(1) the evidence must be relevant to an issue other than defendant‘s character; (2) the probative value must not be substantially outweighed by its undue prejudice; [and] (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.”53 As to the first factor, relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”54 And as to the second factor, even if Rule 404 (b) evidence is relevant, we must then decide whether “the probative value of the other acts evidence is substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403.”55 Of course, application of the Rule 403 balancing test is “a matter committed principally to the discretion of the trial courts, but as we have explained before, the exclusion of evidence under Rule 403 is an extraordinary remedy which should be used only sparingly.”56 Finally, we review the admission of Rule 404 (b) evidence “for a clear abuse of discretion,” a review requiring us to make “a common sense assessment of all the circum-
Here, Morris argues that the trial court erred in admitting evidence of his theft conviction when that incident was “remote in time to the charges stated within the indictment” and “there were no similarities or nexus between the prior independent acts and the instant case.” He also maintains that the trial court erred by admitting evidence of his prior conviction for possession of marijuana.
As to the evidence of theft, the State presented the testimony of a woman who stated that, in 2012, both Morris and Ruffin accompanied a friend to her home so that they could all shoot her father‘s firearm. But when the group returned to her home after shooting the gun on a farm, Morris and Ruffin refused to return it to her possession, with Morris in particular telling her that she could not have the gun back. She then immediately notified law enforcement, who located the vehicle in which Morris and Ruffin were traveling and, during the ensuing stop, located two firearms inside the vehicle beneath Ruffin‘s seat, including the one that belonged to the victim‘s father. Morris thereafter pleaded guilty to a charge of theft by taking. The trial court admitted the evidence of Morris‘s prior conviction for theft by taking because it found the evidence relevant to show intent, knowledge, and plan with regard to the charge of possessing a firearm during the commission of a felony; and the court instructed the jury that it was being admitted for that purpose.
As to the evidence of possession of marijuana, a law-enforcement officer testified that during a traffic stop in September 2013, he detected the odor of marijuana, and the driver, Morris, admitted that there was marijuana in the driver‘s side door. Morris thereafter pleaded nolo contendere to a charge of possessing less than one ounce of marijuana. The trial court admitted the evidence of Morris‘s prior possession of marijuana after concluding that the evidence was relevant to show his motive and intent with regard to the charge of attempt to commit armed robbery (i.e., to show motive and intent to steal Ball‘s stash of marijuana), and the court instructed the jury as to its reason for doing so.
But even if the trial court erred in admitting the foregoing evidence, any error was harmless because “it is highly probable that
In this case, looking to the evidence as recounted supra, it is highly probable that any error in admitting testimony regarding a misdemeanor conviction for possessing less than one ounce of marijuana and testimony regarding a dissimilar theft in which there were no threats of or use of violence (and the victim was apparently unaware that Ruffin or Morris possessed their own firearm) did not contribute to the verdict in light of the strength of the other evidence presented by the State.61 Indeed, the extensive evidence in this case consisted of the victims’ testimony identifying Morris as a perpetrator because he had purchased marijuana from Ball numerous times in the past; that Morris and Ruffin feigned interest in purchasing marijuana from Ball on the night in question; that the shooting occurred right as Ball returned from retrieving marijuana from a bedroom; that Ball recalled watching as Morris and Ruffin appeared to look for items to steal before fleeing the scene; and the State presented evidence connecting Morris to the Sex Money Murder criminal street gang. Accordingly, even if the trial court erred, the error was harmless.62
5. Next, Morris argues that the trial court erred in giving certain limiting instructions to the jury with regard to evidence it admitted
In the first instance, the trial court instructed the jury that “the next witness is... also being offered for a limited purpose that is the same as the last witness, also testifying about the same events. And it‘s being offered for the same purposes and no other purposes.” The instruction was given prior to testimony from the law-enforcement officer who apprehended Morris and Ruffin on the Rule 404 (b) theft charge, discussed in Division 4 supra. The officer was the last of two witnesses to testify as to this incident. And as to the first witness, the victim herself, the trial court charged the jury as follows:
We‘re hearing . . . from another witness, ladies and gentlemen, that‘s being offered for a limited purpose. You‘re about to hear evidence that relates to both... defendants and it‘s being offered by the State for . . . purposes of proving the charge of possession of a firearm during the commission of a felony, which both defendants are charged with in this case. And as to that charge, it‘s being offered to show their intent, knowledge or plan.
In the second instance, the trial court instructed the jury that “the same limiting instruction I gave for the last witness applies to this witness. The evidence is being offered solely to show the existence of a criminal gang and you‘re to consider it for that purpose and for no other purpose.” This instruction was given prior to testimony from a law-enforcement officer who worked in the jail division and testified regarding his personal knowledge as to the nicknames and tattoos associated with a specific inmate who was a member of Sex Money Murder. The witness just prior to this officer was also a
Ladies and gentlemen, once again, this evidence that you‘re about to hear is being offered for a limited purpose.... It‘s being offered for a limited purpose and ... this evidence, again, is being—it doesn‘t—you‘re going to hear about events that don‘t have anything to do with either one of these defendants. The evidence is being offered only to show the existence of a criminal street gang and for no other purpose. And you can‘t consider it for any other purpose.
In the third instance, the trial court instructed the jury that “the same instruction I just gave for the last witness applies to this witness.” This instruction was given prior to the testimony of a law-enforcement officer as to an attack that was perpetrated upon a jail inmate by four other inmates, which included Morris and members of Sex Money Murder. The witness prior to this law-enforcement officer was the inmate the officer testified had been attacked; however, in his brief testimony, the inmate denied the attack or making any prior statements that he had been attacked. But prior to the inmate‘s testimony, the trial court instructed the jury as follows:
[T]he testimony you‘re about to hear, I‘m going to give you a limiting instruction on that as I did earlier. And this testimony, you‘re... going to hear about some events that involve—they‘re going to go to the gang charges as to Mr. Morris only and also as to the existence of a criminal gang. And you‘re—the testimony is limited to that purpose and not to be considered for anything else.
The record reflects that while Morris objected to the admission of the evidence as to each of these witnesses, he did not object to the instructions that were given by the trial court. And as a result, we will review the court‘s instructions only for plain error.65 Accordingly, we
Our Supreme Court has adopted a four-part test for plain-error review:
First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant‘s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.67
Applying this standard to each of the above-quoted instructions, Morris has failed to establish that the trial court committed plain error. Each of the three complained-of instructions was immediately preceded by testimony from witnesses as to whom the trial court gave explicit, clear limiting instructions, and the court then referred back to those instructions. The testimony from the preceding witnesses was relatively brief, making it highly unlikely that the jurors would have forgotten or been confused about the instruction to which the court referred and, thus, unlikely that the instructions affected the outcome of the proceedings. Accordingly, this enumeration of error is without merit.
6. Morris contends that the trial court erred in admitting irrelevant and cumulative hearsay testimony regarding his alleged gang connections. Again, we disagree.
(a) First, Morris argues that the trial court erred in permitting hearsay testimony provided by the State‘s expert witness. But because counsel did not make a hearsay objection to the expert‘s testimony,
(b) Morris next argues that the trial court erred in admitting testimony by nine additional witnesses. However, he provides no citation to authority in support of his contentions that the testimony by these witnesses was irrelevant, inadmissible, and/or highly prejudicial. Accordingly, he has abandoned these enumerations for appellate review.69
7. Finally, Morris argues that his convictions for criminal attempt to commit armed robbery, aggravated assault, and aggravated battery should have merged for purposes of sentencing. Because we agree that his convictions and sentence for criminal attempt to commit armed robbery and aggravated assault should have merged, we vacate his sentence in part and remand to the trial court for resentencing.
The question of whether offenses merge is a legal question that we review de novo.70 When a defendant is convicted of multiple crimes based upon the same act, “the principle of factual merger operates to avoid the injustice.”71 One crime is included in another when
(1) [i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or
(2) [i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person,
To answer the question of whether offenses merge, the Supreme Court of Georgia has adopted the “required evidence” test set forth by the Supreme Court of the United States to resolve these situations.73 Accordingly, when determining whether convictions for multiple crimes merge for purposes of sentencing,
the applicable rule is that [when] the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.74
Here, Morris was charged with criminal attempt to commit armed robbery in that he, “with intent to commit theft by taking United States currency and by taking marijuana from the person and the immediate presence of [Ball], did brandish a firearm, an offensive weapon, at said [victim] and did point said firearm at said [victim]....” Morris was charged with aggravated assault in that he “did make an assault upon the person of [Ball] with a deadly weapon, to wit: a 9mm handgun, by brandishing a firearm at said person, by brandishing and menacing said person with said firearm, and by shooting said person with said firearm. . . .” Finally, Morris was charged with aggravated battery in that he “did maliciously cause bodily harm to [Ball] by seriously disfiguring his colon, his rib, and his chest cavity, members of said person‘s body. . . .”
First, as to whether the convictions for criminal attempt to commit armed robbery and aggravated assault should have merged, our Supreme Court has previously observed that armed robbery75 requires “an intent to rob, the use of an offensive weapon, and the taking of property from the person or presence of another.”76 And as
In this case, Morris‘s conviction for aggravated assault should have merged with his conviction for criminal attempt to commit armed robbery because those acts were predicated upon the same act or transaction, i.e., Morris‘s use of a handgun to overpower and intimidate Ball for the purpose of attempting to rob him of his belongings.82 Accordingly, the conviction and sentence for aggravated assault must be vacated and the case remanded to the trial court for resentencing.83
Having determined that the conviction and sentence for aggravated assault must be vacated, we must now determine whether
Accordingly, for all of the foregoing reasons, we affirm in part, vacate in part, and remand to the trial court for resentencing consistent with this opinion.
Judgment affirmed in part and vacated in part, and case remanded with direction. Reese and Bethel, JJ., concur.
DECIDED FEBRUARY 21, 2017.
The Leslie Group, Deborah L. Leslie, for appellant.
Peter J. Skandalakis, District Attorney, John H. Cranford, Jr., Assistant District Attorney, for appellee.